328 F.

3d 120

Tierra GRAZIER, Minor, By and Through her Mother Tonia

WHITE; and Dwayne Campbell, Appellants
v.
THE CITY OF PHILADELPHIA; Thomas Hood, Police
Officer, Badge No. 7426; Anthony Swinton, Police Officer,
Badge No. 6819, Individually, and in Their Official Capacity as
Police Officers for the City of Philadelphia.
No. 01-3284.

United States Court of Appeals, Third Circuit.

Argued June 24, 2002.
Filed May 9, 2003.

COPYRIGHT MATERIAL OMITTED Garrett D. Page, (Argued),

Richard W. Rogers & Associates, Norristown, for Appellant.
Marcia Berman, Eleanor N. Ewing, (Argued), City of Philadelphia, Law
Department, Philadelphia, Richard G. Tuttle, James A. Rocco, III,
(Argued), Kolansky, Tuttle & Rocco, Philadelphia, for Appellees.
Before BECKER, Chief Judge, * ALITO and AMBRO, Circuit Judges.
OPINION OF THE COURT
AMBRO, Circuit Judge.

Dwayne Campbell and Tierra Grazier brought this 42 U.S.C. 1983 action
against Philadelphia police officers Thomas Hood and Anthony Swinton as
well as the City of Philadelphia. They allege that Hood and Swinton violated
their Fourth and Fourteenth Amendment rights by shooting at them in the
course of a traffic stop and that the City failed to train these officers properly.
At the close of the plaintiffs' case-in-chief, the District Court granted judgment
as a matter of law for the City on the basis that the plaintiffs could not satisfy
the stringent requirements for municipal liability. The case against Officers
Hood and Swinton went to the jury, which found them not liable for any

constitutional violations. In a post-trial memorandum, the District Court denied

the plaintiffs' motion for a new trial. We affirm.1
I. Factual Background
2

On October 3, 1997, Officers Hood and Swinton were patrolling Philadelphia

in an unmarked police car and in civilian clothes. Officer Hood was wearing a
Philadelphia Phantoms hockey jersey, blue jeans, and black high top uniform
boots, with his badge hanging from a chain around his neck. Officer Swinton
was wearing a multi-colored flannel shirt, blue jeans, white baseball cap, and
white sneakers. Both officers were relatively new on the job, and this was the
first time that either had been assigned to this type of plainclothes duty.

According to the officers, at approximately 8:00 p.m. a car passed them at high
speed in a non-traffic lane. Hood and Swinton followed the vehicle, which
Campbell was driving with his young cousin Grazier in the back seat, to the
next intersection, where Campbell had stopped for a light. Notwithstanding
that, under Philadelphia Police Department regulations, it is "preferable" that
plainclothes officers not make traffic stops,2 Hood drove his car around
Campbell's, blocking him perpendicularly in the intersection.3 Hood and
Swinton emerged from the unmarked car and, according to them, displayed
their police badges and said "Police, Don't Move." Campbell contends that he
could not hear what the officers said because his windows were closed and the
radio was playing. Because Hood and Swinton drew their guns and because
they were dressed in plain clothes, Campbell believed that he was being
carjacked. Panicked, he threw his car into reverse and backed into another car.
He then drove forward either at Hood or in his direction. Hood fired four shots
at Campbell's car, three of which struck Campbell. The shot that injured
Campbell most severely, the last of the four, arguably was not discharged until
after his vehicle was pulling away from the officers. No bullets hit Grazier,
though she was showered in broken glass.

Following an inquiry, the Philadelphia Police Department determined that

Hood violated police Directives 104 and 92, which govern the use of deadly
force and vehicle investigations, respectively. Hood was suspended thirty days
for using his firearm improperly. Swinton was investigated but not disciplined.
He neither drove the unmarked police car nor fired any shots at Campbell's car.

The City has promulgated numerous directives, like Directives 10 and 92, to
inform its officers of proper procedures. In addition, the City responded to this
incident consistently with its established procedure of investigating all firearms
discharges by its police officers. When the City finds a violation, it disciplines

the offending officer, including requiring a full day of firearms instruction.

Furthermore, the City requires annual firearms retraining for all officers. The
plaintiffs do not appear to claim that the City did not investigate these incidents
and discipline the offending officers. They question the level of discipline and
training, contending, among other things, that more extensive firearms
retraining was necessary.
II. Discussion
6

We address first the plaintiffs' municipal liability claim, then their claim that
the Court erred in instructing the jury on the claims against the individual
officers, and last the claim that the District Court erred by not overturning the
jury's verdict of no liability.
A. Municipal Liability

The District Court granted the City's motion for judgment as a matter of law
under Federal Rule of Civil Procedure 50(a). We exercise plenary review over
that decision. See Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d
604, 613 (3d Cir.1995). "A district court should grant such a motion only if,
viewing all the evidence in favor of the nonmoving party, no reasonable jury
could find liability on a particular point." Id. (citing McDaniels v. Flick, 59
F.3d 446, 454 (3d Cir.1995)).

The plaintiffs argue that the City is liable because it followed a policy of
failing to train its officers in proper firearm and vehicle investigation
techniques. The District Court concluded that no reasonable jury could find
municipal liability from the facts that plaintiffs allege. In its post-trial
memorandum, the District Court added another rationale for this ruling: the
City cannot be liable on a failure to train theory for conduct that a jury
determined did not violate the plaintiffs' constitutional rights. City of Los
Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per
curiam). Either reason independently supports the Court's judgment for the
City.

1. Municipal liability requires constitutional harm

10

The District Court correctly determined that any error in granting judgment for
the City at the close of the plaintiffs' case would have been rendered harmless
by the jury's verdict of no liability against Hood and Swinton. There cannot be
an "award of damages against a municipal corporation based on the actions of

one of its officers when in fact the jury has concluded that the officer inflicted
no constitutional harm." Heller, 475 U.S. at 799, 106 S.Ct. 1571. Because the
jury in this case found no constitutional violation, Heller precludes a finding of
municipal liability against the City. This conclusion follows naturally from the
principle that municipal liability will only lie where municipal action actually
caused an injury. See City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989) (observing that a City "may be held liable if its
policy actually causes injury") (emphasis added). 5
11

2. No reasonable jury could find liability on the merits.

12

Even if Heller did not bar municipal liability, the District Court correctly
rejected on the merits the plaintiffs' claim against the City. The Supreme Court
set out the framework for establishing municipal liability on a failure to train
theory in Harris, 489 U.S. at 388, 109 S.Ct. 1197, which drew on the principles
announced in Monell v. Dept. of Social Services, New York City, 436 U.S. 658,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A City's failure to train its police
officers must reflect a deliberate or conscious choice by policymaking officials,
such that one could call it the City's policy or custom. The failure to train must
"amount[] to deliberate indifference to the rights of persons with whom the
police come into contact." Harris, 489 U.S. at 388, 109 S.Ct. 1197; see also Bd.
of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct.
1382, 137 L.Ed.2d 626 (1997). Moreover, the City's decisions must be the
"moving force" behind an actual constitutional violation. Harris, 489 U.S. at
389, 109 S.Ct. 1197.

13

"The scope of failure to train liability is a narrow one." Brown v. Muhlenberg

Tp., 269 F.3d 205, 215 (3d Cir.2001). This is particularly true where, as here,
the plaintiffs merely allege that a different training program than the one in
place would have been more effective. See id. at 216 ("To survive summary
judgment on a failure to train theory, the [plaintiffs] must present evidence that
the need for more or different training was so obvious and so likely to lead to
the violation of constitutional rights that the policymaker's failure to respond
amounts to deliberate indifference.") (citation omitted).

14

Plaintiffs did not introduce evidence sufficient to support a jury finding that the
City's police training is so obviously inadequate that it amounts to deliberate
indifference to the rights of its citizens. Brown, 269 F.3d at 216. The City
enforces directives that reflect proper police procedure. The directives require
officers to use force only as a last resort to avoid death or serious bodily injury,
and to take all reasonable steps to avoid making the use of force necessary.
Other directives instruct officers on proper vehicle investigation techniques and

discourage vehicle stops by unmarked officers. When the City finds a violation,
it retrains that officer in the proper use of firearms and metes out disciplinary
measures if appropriate. Ironically, this very case involves an example of the
City's disciplinary process in motion. The plaintiffs complain that the City
provides insufficient "field training" and fails to instruct its officers in
"shoot/no shoot" procedures. However, the evidence showed that the City does
provide extensive on-the-job training, if not always in precisely the form that
plaintiffs would prefer.
15

Moreover, even if plaintiffs could show deliberate indifference, they would

also have to prove that the City's inadequate training policies were the "moving
force" behind their injuries. Harris, 489 U.S. at 389, 109 S.Ct. 1197; Bryan
County, 520 U.S. at 405, 117 S.Ct. 1382. This is at base a causation
requirement. See Bryan County, 520 U.S. at 404, 117 S.Ct. 1382 (stating that
the "moving force" standard requires a "direct causal link between the
municipal action and the deprivation of federal rights"). As the Supreme Court
said in Harris:

16

Neither will it suffice to prove that an injury or accident could have been
avoided if an officer had had better or more training, sufficient to equip him to
avoid the particular injury-causing conduct. Such a claim could be made about
almost any encounter resulting in injury, yet not condemn the adequacy of the
program to enable officers to respond properly to the usual and recurring
situations with which they must deal. And plainly, adequately trained officers
occasionally make mistakes; the fact that they do says little about the training
program or the legal basis for holding the city liable....

17

[F]or liability to attach in this circumstance, the identified deficiency in a city's

training program must be closely related to the ultimate injury.

18

489 U.S. at 390-91, 109 S.Ct. 1197. In this case, plaintiffs cannot point to
evidence that the officers cut them off and shot at their car because they were
trained to do so. To the contrary, the directives instruct officers to follow
different procedures. In this context, the District Court properly granted the
City's motion for judgment as a matter of law.
B. The Jury Charge and Verdict Form

19

Plaintiffs argue that the jury charge did not sufficiently emphasize points in
their favor, that the charge incorrectly referred to "unreasonable force" rather
than "excessive force," and that the jury should have been given a special

interrogatory on whether a seizure occurred. None of these arguments is

persuasive.
1. Particular emphasis in the jury charge
20

Plaintiffs raise a series of complaints to the effect that the jury charge should
have highlighted specific reasons permitting the jury to find in their favor. First,
they contend that the judge should have told the jury to look at the defendants'
preseizure conduct.6 Instead, the judge instructed the jury that "[a]ll the events
transpiring during the officer's encounter with the plaintiffs can be considered
in evaluating the reasonableness of Hood's shooting." Second, plaintiffs argue
that the judge should have told the jury that Hood and Swinton may have acted
unreasonably if they failed to identify themselves properly while working a
plainclothes detail. Again, the District Court limited its instruction to more
general statements about the meaning of reasonableness.7 Third, the plaintiffs
argue that the District Court erred by informing the jury that Officer Hood's
suspension for violating police procedure does not necessarily prove that he
acted unreasonably under the Fourth Amendment. In each instance about which
the plaintiffs complain, the judge told counsel that he would instruct the jury
on the established understanding of reasonableness for excessive force claims,
but that counsel was free to argue more specific points in their favor at closing.

21

We review the District Court's decision to use particular language in the jury
charge for abuse of discretion. Cooper Dist. Co. v. Amana Refrigeration, Inc.,
180 F.3d 542, 549 (3d Cir.1999). We have said that, in evaluating jury
instructions, we shall only find discretion abused "if the instruction was capable
of confusing and thereby misleading the jury." United States v. Fischbach &
Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984); see also Bolden v. S.E. Pa.
Transp. Auth., 21 F.3d 29, 33 (3d Cir.1994) (same) (citing Waldorf v. Shuta,
896 F.2d 723, 740 (3d. Cir.1990)). Likewise, the "district court has substantial
discretion with respect to specific wording of jury instructions and need not
give [a] proposed instruction if essential points are covered by those that are
given." Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir.1995) (citing Heller Int'l
Corp. v. Sharp, 974 F.2d 850, 860 (7th Cir.1992)).

22

A District Court does not abuse its discretion by refusing to emphasize legal
inferences favoring one side. Emphasizing arguable inferences to jurors is the
job of advocates, not courts. See Brewer v. City of Napa, 210 F.3d 1093, 1097
(9th Cir.2000) (finding no abuse of discretion in the District Court's refusal in
an excessive force case to apply the law more specifically to the facts in its jury
charge because "the instructions given `fairly and adequately cover[ed] the
issues presented,' and provided Brewer with ample room to argue his theory of

the case to the jury, i.e., that [the officers] had options available to them other
than ordering a police dog to attack.") (citation omitted) (emphasis added);
Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221, 1227 (5th Cir.1984)
(per curiam) ("Counsel had the opportunity to emphasize the matters in his
favor contained in these proposed instructions during jury argument and we
decline to hold that the trial court erred in refusing them.").
23

Moreover, the District Court's charge that violations of police procedure are not
necessarily constitutional violations comports with established Supreme Court
precedent. See Davis v. Scherer, 468 U.S. 183, 193-95, 104 S.Ct. 3012, 82
L.Ed.2d 139 (1984). That portion of the charge did not cross the prejudicial
propriety line because its only effect was to avoid a possible misunderstanding
by the jury.

24

In a related assertion of error, the plaintiffs contend the Court should have
instructed the jury that an officer acts unreasonably if his improper conduct
creates the situation making necessary the use of deadly force. See Estate of
Starks v. Enyart, 5 F.3d 230, 234 (7th Cir.1993); Gilmere v. City of Atlanta,
774 F.2d 1495, 1501-02 (11th Cir.1985) (en banc). However, we also note that
the plaintiffs never requested the jury charge that our dissenting colleague
would issue "that conduct on the officers' part that unreasonably precipitated
the need to use deadly force may provide a basis for holding that the eventual
use of deadly force was unreasonable in violation of the Fourth Amendment."
(Plaintiffs instead sought a charge that linked Fourth Amendment
reasonableness to compliance with local police regulations and thus would have
made constitutional standards vary from jurisdiction to jurisdiction. See supra
note 6.) In the absence of such a request by the plaintiffs, we review the
District Court's actual instruction for plain error only. United States v. Olano,
507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

25

Our Court has not endorsed the doctrine discussed in Gilmere and Starks and, in
fact, has recognized disagreement among circuit courts on this issue. See
Abraham v. Raso, 183 F.3d 279, 295-96 (3d Cir.1999). In Abraham, we
announced that "[w]e will leave for another day how these cases should be
reconciled." Id. at 296. In this context, the District Court did not abuse its
discretion by refusing to instruct the jury on a doctrine that our Circuit has not
adopted. As such, plain error of course did not occur.

26

Our dissenting colleague also parts with us on this issue in a more general way.
Jury instructions, he writes, are "the didactic exercise of providing the jury with
guidance as to how ... [legal] principles apply to the evidence presented and
how the factual disputes bear on the ultimate outcome." While acknowledging

"the key role of counsel in arguing the facts to the jury and explaining their
significance," nonetheless our colleague believes that "there are some cases in
which the failure to explain the significance of key facts does constitute a
breach of the trial judge's duty," and "this is one of them."
27

Our pause with this approach is simply this: to adopt it puts courts on the
slippery slope to interfering with (indeed substituting for) counsel's advocacy
and ultimately intruding on the jury's job of finding facts. What our colleague
suggests may, in a perfect world with a perfect jury instruction, not interpose
the judge in the jury room. But our world is not perfect. Until it is, engrafting
evidence to argument is the home turf of counsel. Laying out a level (even if
plain) canvas for counsel to color is the court's model role. When (as in this
case) a court does this, it is hardly an abuse of discretion.

28

2. Use of "unreasonable force" rather than "excessive force" on verdict form

29

Plaintiffs contend that the Court erred by drafting a verdict slip that asked
whether the defendants used "unreasonable force" when it should have said
"excessive force." This contention merits little discussion. The Fourth
Amendment refers to "unreasonable searches and seizures" the phrase
"excessive force" is merely a shorthand for one type of Fourth Amendment
claim. We do not believe that this slightly different terminology affected the
jury's outcome.

30

3. Lack of a special interrogatory on seizure

31

Plaintiffs also argue that the District Court should have instructed the jury to
find whether a seizure occurred. The Court declined to do so because it found a
seizure as a matter of law. That ruling benefitted the plaintiffs. They have no
right to a jury finding on an issue decided in their favor as a matter of law.
C. New Trial Motion

32

Plaintiffs sought a new trial under Federal Rule of Civil Procedure 59 on the
basis that the verdict was against the weight of the evidence. The District Court
denied that motion. We review the denial of a new trial motion for abuse of
discretion. Waldorf v. Shuta, 142 F.3d 601, 621 (3d Cir.1998). "In reviewing
the district court's denial of [a] new trial motion, we must view the evidence in
the light most favorable to the non-moving party." Caruolo v. John Crane, Inc.,
226 F.3d 46, 54 (2d Cir.1999) (citation omitted). We have said that "new trials
because the verdict is against the weight of the evidence are proper only when

the record shows that the jury's verdict resulted in a miscarriage of justice or
where the verdict, on the record, cries out to be overturned or shocks our
conscience." Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d
Cir.1991).
33

This case does not approach the high threshold for granting a new trial. The
jury heard (as is typical) occasionally inconsistent testimony from both sides
and could have concluded that Hood and Swinton acted in reasonable fear for
their lives when Hood fired his gun at Campbell's oncoming car. Established
Fourth Amendment precedent gives officers considerable leeway when making
"split-second judgments in circumstances that are tense, uncertain, and
rapidly evolving about the amount of force that is necessary in a particular
situation." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d
443 (1989). The proper standard is not what an officer would do "with the
20/20 vision of hindsight." Id. at 396, 109 S.Ct. 1865. In deciding an appeal
from a judgment entered after a jury trial, we must respect the jury's important
role in our legal system and therefore may not substitute our view of the
evidence for that of the jury.

******
34
35

The District Court's judgment supporting the jury verdict is affirmed.

Notes:
*

Judge Becker completed his term as Chief Judge on May 4, 2003

We have jurisdiction under 28 U.S.C. 1291, which permits appeals from final
decisions of the district courts

See Directive 92(I)(A)(1) ("It is preferable that an officer making a stop for a
traffic violation be in uniform."); Directive 92(II)(J) ("Police Officers in
plainclothes and detectives will not routinely make traffic stops unless the
actions of the violator are a clear danger to pedestrian or vehicular traffic and
no marked unit is readily available.").

It appears that this particular maneuver also violated Philadelphia Police

Department regulations. See Directive 92(II)(A) ("Personnel will make every
effort to direct the operator to a suitable stopping point where normal traffic
flow will not be impeded.")

Directive 10 instructs officers, among other things, to "exhaust all other

reasonable means of apprehension and control before resorting to the use of
deadly force."

Our Court has distinguishedHeller in a substantive due process context, Fagan

v. City of Vineland, 22 F.3d 1283, 1291-94 (3d Cir.1994), but not in a way
relevant to this case. In Fagan, we observed that a municipality could remain
liable, even though its employees are not, where the City's action itself is
independently alleged as a violation and the officer is merely the conduit for
causing constitutional harm. Id. at 1292. We were concerned in Fagan that,
where the standard for liability is whether state action "shocks the conscience,"
a city could escape liability for deliberately malicious conduct by carrying out
its misdeeds through officers who do not recognize that their orders are
unconstitutional and whose actions therefore do not shock the conscience. Id.
Here, however, like Heller and unlike Fagan, the question is whether the City
is liable for causing its officers to commit constitutional violations, albeit no
one contends that the City directly ordered the constitutional violations.
Therefore, once the jury found that Hood and Swinton did not cause any
constitutional harm, it no longer makes sense to ask whether the City caused
them to do it. Additionally, recognizing that Heller had addressed a closely
related issue, we carefully confined Fagan to its facts: a substantive due
process claim resulting from a police pursuit. Id. By contrast, both this case and
Heller involve primarily a Fourth Amendment excessive force claim.

The plaintiffs requested the following as part of the jury charge:

When an officer's conduct amounts to more than a minor departure from
internal department policy, and particularly where the officer engaged in
intentional misconduct, such as when he intentionally does an act knowing it is
wrong, you may find that the officer's... acts creating the need for force are
important in evaluating reasonableness of the officer's eventual use of force in
this case. Therefore, you may consider that there was more than a minor
departure from Internal Department Policy when it indicates in the Internal
Affairs Report itself that Officers Hood and Swinton improperly blocked Mr.
Campbell's car in front, failed to radio, and/or communicate important
information regarding the car for an investigation as directed by Directive 92,
exited their unmarked vehicle, dressed in plainclothes civilian attire,
approached the Campbell car they blocked from the front, and then placed
themselves in harm[']s way.
Appellant's Br. 23-24.

Specifically the Court instructed the jury that

[y]ou must determine whether the amount of force used to effect the stop was
that which a reasonable officer would have employed in effectuating the stop
under similar circumstances. In making this determination, you may take into
account the reason for the stop, the severity of the crime or the violation,
whether plaintiffs posed an immediate threat to the safety of the defendants or
others, and whether the plaintiffs actively resisted or attempted to evade the
stop.
36

BECKER, Chief Judge,* Dissenting.

37

I join in Part II.A of the majority opinion (Municipal Liability), as well as Parts
II.B.2 and 3 (use of "unreasonable force" in jury charge and lack of a special
interrogatory on seizure). I disagree with, hence I do not join in Part II.B.1
(Particular Emphasis on Jury Charge); I therefore write separately on that issue.
Because I would reverse and remand for a new trial on account of what I view
as a deficiency of the jury charge, I do not reach Part II.C (New Trial Motion).

I.
38

As in most cases of this genre, the facts are critical. Especially important are
the following: (1) that Officers Hood and Swinton were in plain-clothes; (2)
that under Philadelphia Police Regulations, officers in plain-clothes may not
make traffic stops, hence Hood and Swinton violated this policy in stopping
Campbell's car; (3) that the officers also violated Philadelphia Police
regulations by pulling perpendicularly in front of Campbell's car to stop it;1 (4)
that Campbell believed that he was being carjacked; and (5) that the shot that
maimed Campbell, the fourth shot fired by the officers, was arguably not
discharged until after Campbell's vehicle was heading away from the officers at
which time he could not have posed a danger to them. The majority opinion
notes these facts but does not acknowledge that: (6) under these circumstances,
it was reasonable for Campbell, who denies that the slovenly-dressed officers
showed identification, thought that he might be facing a carjacking, which in
turn furnished the motivation to escape; and (7) under these circumstances, the
perceived need to use force was arguably created by the misconduct of the
officers themselves.

II.
39

In my view, these facts and permissible inferences posed an important legal

issue with which the District Court should have but did not come to grips,
resolution of which should have resulted in a charge much more favorable to
the plaintiffs. In Abraham v. Raso, 183 F.3d 279 (3d Cir.1999), we established,

as a general matter, the relevance of officers' pre-seizure conduct to

determining whether use of force during the seizure is excessive. Raso left
open, however, the question of how much weight an officer's unreasonable
creation of danger should be given in the calculus of whether the officer's use
of force was ultimately reasonable under the Fourth amendment.
40

Without laying down a blanket rule (which perforce I obviously cannot do as a

dissenting judge) I would decide that issue by holding that if the officer's
conduct unreasonably creates the need to use deadly force in self-defense, that
conduct may render the eventual use of deadly force by the officer
unreasonable in violation of the Fourth Amendment, even if the officer
reasonably believed that such force was necessary to prevent death or severe
bodily injury. See Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir.1993)
("Police officers who unreasonably create a physically threatening situation in
the midst of a Fourth Amendment seizure cannot be immunized for the use of
deadly force."); cf. Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th
Cir.1985) ("[A] moment of legitimate fear should not preclude liability for a
harm which largely resulted from [an officer's] own improper use of his official
power.").

III.
41

The art of instructing the jury is not the rote recitation of controlling legal
principles, quoted verbatim from the case law, but the didactic exercise of
providing the jury with guidance as to how those principles apply to the
evidence presented and how the factual disputes bear on the ultimate outcome.
Cf. Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir.1977) ("While a
comprehensive review of the evidence is not generally required, the District
Court's failure, here to relate the parties' contentions to the law ... left the jury
without guide or compass to aid it in rationally reaching a decision."). In my
view, the District Court's "vanilla" charge "you may consider all the factors
(argued by counsel)" was not adequate because it lacked guidance on the
issue just described in Part II of this (dissenting) opinion.

A.
42

First, I believe that it was an abuse of discretion for the trial judge not to
explain to the jury at least the general principle that conduct on the officers'
part that unreasonably precipitated the need to use deadly force may provide a
basis for holding that the eventual use of deadly force was unreasonable in
violation of the Fourth Amendment. The closest the District Court came to
instructing the jury on this point was when it directed the jury to consider "the

totality of the circumstances" and "[a]ll of the events transpiring during the
officers' encounter."
43

The instructions preceding and following these particular instructions, however,

focused on whether a reasonable officer in Hood's position would have
believed that he was in danger of death or severe bodily injury when he fired
the shots:

44

In evaluating the reasonableness of the use of force in this situation, you must
ask yourselves the following question: giving due regard to the pressures faced
by the police, was it objectionably [sic] reasonable for the officer to believe, in
light of the totality of the circumstances, that the subject posed a significant
threat of death or serious physical injury to the officer or others, and that deadly
force was necessary to prevent the suspect from causing serious physical injury
or death.

45

...

46

The determination of reasonableness must embody allowance for the fact that
police officers are forced to make split-second judgments in circumstances
that are tense, uncertain and rapidly evolving about the amount of force that
is necessary in a particular situation. All of the events transpiring during the
officers' encounter with the plaintiffs can be considered in evaluating the
reasonableness of the shooting.

47

A. 124-26.

48

This charge clearly favored the defendants. In this context, the jury was likely
to have understood the "totality of the circumstances" and "[a]ll of the events
transpiring during the officers' encounter" to refer to the circumstances that
would lead a reasonable officer in Hood's position to believe that he was in
danger of death or severe bodily injury at the time he fired, and not to conduct
on the officers' part that unnecessarily precipitated the need to use deadly force.

49

As I would decide the question reserved in Raso, an officer's use of deadly

force may violate the Fourth Amendment even if the officer reasonably
believed that the use of deadly force was necessary to prevent death or severe
bodily injury. What the District Court told the jury was that an officer "is
justified in the use of any force which is believed to be necessary to effect the
stop and of any force which he or she reasonably believes to be necessary to
defend himself or another from serious bodily injury." A.126. This instruction,

in my view, improperly prevented the jury from finding for the plaintiffs if the
jury concluded that a reasonable officer in Hood's position would have believed
he was in danger of being run over at the time he fired the shots but that the
officers had unreasonably placed themselves in a position in which the use of
deadly force would be necessary. Inasmuch as I believe that the District Court's
failure to charge in accordance with the principles outlined was legal error
(which itself is an abuse of discretion), I find grounds to set aside the judgment.
B.
50

Second, I think that the jury needed guidance on the "signature" facts of the
case: that the defendants were plainclothes officers, forbidden by Regulations to
make traffic stops, and that the officers were driving an unmarked car (in a high
crime neighborhood) which they pulled perpendicularly in front of plaintiffs'
car to make a traffic stop, also in violation of department policy. I believe the
jury should have been told explicitly that it could consider such matters in
determining the reasonableness of the officers' conduct.

51

I also think that the court should have explained to the jury the relevance of the
disputed questions of fact, such as whether the officers exited the car with guns
drawn and failed to identify themselves, as Campbell testified, and whether a
reasonable officer in Hood's position would know that he was out of danger
when he fired the last shot, which entered the back of Campbell's car and
lodged in the base of his brain. Plaintiffs' accident expert, who analyzed each of
the four shots fired by Hood and the position of the car at the time of the shots,
testified that if Hood fired the shots in one second, which the expert thought
was likely, the final shot, which went into the car's back windshield, would
have been fired when the car was 32 feet up the road from Hood. A.394. If, as
Hood testified, he fired the shots in two seconds, the final shot would have been
fired, according to plaintiffs' expert, when the car was 120 feet from Hood.
A.394. This testimony was unrebutted by any defense expert.

C.
52

Notwithstanding the foregoing discussion, I do not maintain that the District

Court has an obligation to review all the evidence with the jury and to explain
to it the significance of all major evidence in the case. Concomitantly, I
acknowledge the key role of counsel in arguing the facts to the jury and
explaining their significance. But there are some cases in which the failure to
explain the significance of key facts does constitute a breach of the trial judge's
duty; in my view this is one of them. A trial judge who simply tells the jury to
consider the totality of the circumstances and leaves it to the lawyers to point

out the particular circumstances favorable to their clients, in my view, fails to

"adequately submit[ ] the issues in the case to the jury." In re Merritt Logan,
Inc., 901 F.2d 349, 359 (3d Cir.1990).
53

I add that I do not believe that to explain the significance of the facts that I have
stressed, against the background of the applicable law (which under my view of
the case the District Court did not cover) would constitute "slanting." The facts
are the facts, and they can be set forth in a balanced way. The jury could also
have been instructed on the relevance of the evidence supporting the
defendants' case. The mere fact that some facts favor one side or another is no
reason not to explain their significance. The judge's job is to give guidance to a
lay jury, not to leave it adrift.

IV.
54

I have no idea what a properly charged jury would do in this case. The jury
may believe that the officers, genuinely fearing for their lives, acted reasonably.
But it may also believe that Campbell, who had just come from dropping his
grandmother off at church, with his minor cousin Tierra Grazier being the
passenger in the rear seat, would prevail. At all events, I think that the failure of
the District Court to give the jury adequate guidance on either the law or the
facts constitutes an abuse of discretion. I would therefore set aside the judgment
and grant the plaintiffs a new trial. I respectfully dissent.

Notes:
1

The Police Department's Internal Affairs Division found that Hood violated
Police Department Directive 10, regarding use of deadly force, and Directive
92, which instructs officers in plain-clothes not to make stops for traffic
violations